PRE Application Services Agreement

This PRE Application Services Agreement (“Agreement”) is entered into effective this date (“Effective Date”), by and between PRE Inc., an Ontario corporation, having its principal address at 7 St. Thomas Street, Unit 502, Toronto, Ontario, Canada (hereinafter “PRE”) and Client, having its principal address at the Address above (hereinafter the “Client”) (each a “party” and collectively the “parties”).

NOW THEREFORE in consideration of the mutual promises and covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

Definitions

“Application Fees” means the fees payable by Client as set forth in Exhibit A attached hereto;

“Application Services” means the proprietary PRE application services consisting of the PRE User Interface Testing Software Application;

“Authorized User” means an Internet user who has been authorized by PRE to access the Application Services under PRE’s then-applicable terms and conditions of use for the Application Services;

“Client Website” means any website, advertisement, visual content, or app operated by the Client or provided to PRE by Client;

“Fees” means the Application Fees;

“Individually Identifiable User Data” means data that identifies a specific Authorized User or the Client;

“Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (a) patent rights; (b) rights associated with works of authorship including copyrights and moral rights; (c) rights relating to the protection of trade secrets and confidential information; (d) rights in trademarks, service marks, trade dress, trade names, and design patent rights, and (e) any right analogous to those set forth herein and any other proprietary rights relating to intangible property;

“PRE Content” means any and all content, information, data, text, images and materials provided by PRE or generated or displayed in relation to, or as result of, the use of the Application Services by Client or Authorized Users under this Agreement, exclusive of facial images or other Individually Identifiable User Data submitted by Client or Authorized Users to the Application Services;

“PRE Page” means a designated webpage to which client can visualization requests/calls;

“API” means Application Programming Interface calls which are requested by Client to the PRE Page which enable the Application Services.

“PRE Website” means the website operated by PRE through which the Services and the PRE Content are made available under this Agreement;

“Services” means the Application Services;

“Term” means the term of this Agreement as defined in Section 9.1 below;

“Trademarks” means the PRE trademarks, service marks and logos;

“User Data” means all data on the usage by Client and Authorized Users of the Application Services and PRE Content, including without limitation Individually Identifiable User Data.

services

Application Services

Subject to the terms and conditions of this Agreement, and following payment of the first instalment of the Application Fees, PRE grants to Client, a non-exclusive, non-transferable, non-sublicenseable license, during the Term, solely: (i) to access the Application Services from the PRE Page; (ii) to permit access to the Application Services from the PRE Page to Authorized Users; in each case solely for marketing and evaluation of Client Website.

Nothing contained in this Agreement shall transfer, or be deemed to transfer, any rights in or to the Application Services or PRE Content other than those rights specifically granted herein to Client. Except as expressly provided in the foregoing, Client shall not download, store, reproduce, publish, transmit, broadcast, display, distribute or use any PRE Content or other information derived from access to the Application Services or the PRE Website except to promote the Application Services or PRE Website.

Client shall not: (i) decompile, disassemble, reverse engineer, or otherwise attempt to modify, adapt, or create derivative works of any software, technology, or work of authorship within or related to the Application Services; (ii) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Application Services or PRE Content; (iii) allow or grant any access to the Application Services in any form to any party other than Authorized Users, including access pursuant to any commercial time-sharing, rental, or service bureau arrangements; or (iv) remove, obscure or otherwise alter any proprietary notices, including copyright and trademark notices, contained in or on the PRE Content.

Client agrees that it will not: (i) except as required for the exercise of its rights expressly granted under Section 2.1(a) above, use any robot, spider, other automatic device, or manual process to monitor or copy the Application Services, PRE Content, PRE Website or any technology contained therein without the prior written consent of a duly authorized representative of PRE; (ii) use any device, software or routine to interfere or attempt to interfere with the proper working of the Application Services or PRE Website; or (iii) take any action that imposes an unreasonable or disproportionately large load on the PRE Website or related infrastructure.

Client agrees that in the event of a breach or alleged breach of this Section 2.1 PRE would not have an adequate remedy at law, including monetary damages, and that PRE will consequently be entitled to obtain a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any and all remedies to which PRE may be entitled.

PRE Page

Client acknowledges that the Application Services will only be accessed from the PRE Page using the PRE API. Subject to the terms and conditions of this Agreement, and following payment of the first instalment of the Application Fees, PRE grants to Client a non-exclusive, non-transferable, non-sublicenseable license, during the Term, the Trademarks, as formatted and submitted from time to time to Client by PRE. Except as expressly permitted under Section 2.1(a)(iii) above, the framing of the PRE Website or any of its content is strictly prohibited. Client acknowledges that the Trademarks are the sole and exclusive property of PRE and that all use of the Trademarks shall inure to the benefit of PRE. Client shall not at any time do, or cause to be done, any act or thing contesting, or in any way impairing PRE’s right, title, and interest in any Trademarks, whether or not they are registered in the jurisdictions in which Client is located or does business. Without limiting the foregoing, Client will not adopt, use or register any words, phrases or symbols that are identical to or confusingly similar to the Trademarks.

Acknowledgement

Client hereby acknowledges that the Services and PRE Content are provided solely for Client’s marketing purposes to its prospective customers but are not intended to substitute for professional advice. Client acknowledges that there is no guarantee with respect to the accuracy, adequacy or completeness of the PRE Content and other information obtained through the PRE Website. Client hereby assumes full responsibility for, and agrees to defend, indemnify and hold harmless PRE and its employees, officers, directors, agents and consultants from and against, any and all losses, liabilities, damages, payments, costs and expenses, including reasonable legal expenses, arising from or relating to any claims relating to the Client’s, or any third party’s, products or services, including without limitation, any results obtained by customers of the Client through the use of the PRE product or service provided by Client or a third party. Client agrees to use the Services and PRE Content at its sole risk.

client obligations

Point of Contact

Client shall provide, at its own cost and expense, all reasonable information and assistance requested by PRE so that PRE may provide the Services under this Agreement. Client shall further provide one (1) Client-designated point of contact for PRE to use for all questions and issues relating to the provision of the Services and PRE Content.

Unauthorized Use

Client shall protect the PRE Content from any use that is not permitted under this Agreement. Client represents and warrants to PRE that it shall not (i) interfere with or disrupt the PRE Website, the Application Services or servers or networks connected to the Application Services; (ii) gain unauthorized access to other computer systems through the PRE Website and/or the Application Services; (iii) disrupt the Application Services or otherwise act in a manner that negatively affects other users’ ability to access and/or use the Application Services; (iv) harass other users; or (v) collect and/or store usage data, including any Individually Identifiable User Data, about other users of the Application Services.

fees

Fees and Payment

Client shall pay the Application Fees to be mutually agreed in writing (via email). All Fees shall be due and payable within thirty (30) days of the date of PRE’s invoice. Client acknowledges that any and all payments to PRE are non-refundable and non-creditable. All payments will be made in United States Dollars. Any payments not paid when due shall accrue interest at the lesser of (i) one and a half percent (1.5%) per month and (ii) the highest rate of interest allowed by applicable law.

Taxes

The Fees do not include any taxes. Client shall pay all applicable sales, use, value-added, withholding and excise taxes, and any other assessments against Client in the nature of taxes, duties or charges, however designated, with respect to the Services or any of the Fees payable under this Agreement or otherwise resulting from this Agreement, exclusive of taxes based on the net income of PRE. When PRE has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Client unless Client provides PRE with a valid tax exemption certificate authorized by the appropriate taxing authority.

intellectual property

PRE Technology

Client acknowledges that as between Client and PRE, the entire right, title and interest, including without limitation any and all Intellectual Property Rights in and to, the PRE Technology, are, and at all times shall remain, the exclusive property of PRE, and nothing in this Agreement shall be construed to transfer to Client any ownership interest in or to the PRE Technology or any part thereof.  PRE reserves all rights to the PRE Technology not expressly granted to Client hereunder. and Client hereby assigns to PRE all of its rights, title and interest in and to the PRE Technology which may arise by operation of law or otherwise. Client shall not take or permit any action inconsistent with PRE's ownership of all right, interest and title in and to the PRE Technology or which might impair the value of such ownership. For the purposes of this Section 5.1, “PRE Technology” means the Services and PRE Content, and any software, invention or technology used in providing any of the foregoing, and any derivative, improvement, modification or enhancement of or to any of the foregoing.

User Data

PRE shall have the right to use User Data internally in relation to: (i) the analysis, development and provision of the Application Services and PRE Content; and (ii) record keeping, fee calculation, internal reporting, support and other internal business purposes. PRE shall have the right to use and disclose User Data to report the number and type of transactions and other statistical information concerning the Application Services; provided that PRE shall not report such information in a manner that discloses Individually Identifiable User Data.

Confidentiality

Confidential Information

In connection with the activities contemplated by this Agreement, each party acknowledges that it may have access to confidential or proprietary technical or business information of the other party, including without limitation any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation (“Confidential Information”) including without limitation (i) proposals, ideas or research related to possible new products or services; (ii) financial statements and other financial information; and (iii) the terms of this Agreement and the relationship between the parties. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information of Client includes Individually Identifiable User Data of Client. Confidential Information of PRE shall include, without limitation, the Services, PRE Content and PRE Technology.  Notwithstanding the foregoing, no technical information or know-how relating to facial processing or visualization technology, including without limitation technical data, research, software, inventions, processes, designs and drawings, disclosed by Client shall be deemed Confidential Information unless PRE provides written consent to the disclosure after receipt of a non-confidential summary of the information to be disclosed.

Exclusions

Notwithstanding the foregoing, Confidential Information will not include any information which the receiving party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

Non-Use and Non-Disclosure

Each party will take reasonable precautions to protect the confidentiality of each of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information of similar nature.  Except as required by law or as necessary to perform under this Agreement, neither party will use Confidential Information of the other party for its own benefit or for the benefit of any third party. Neither party will disclose the Confidential Information of the other party to any third party, except to employees, subject to substantially similar confidentiality obligations, who have a need to know the Confidential Information in order for the receiving party to perform its obligations under this Agreement.

Authorized Disclosure

Notwithstanding the foregoing provisions of this Article 6, each party may disclose the terms of this Agreement (i) in connection with the requirements of an initial public offering or securities filing; (ii) in confidence, to accountants, banks, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.  

Injunctive Relief

Each party agrees that in the event of a breach or alleged breach of this Article 6 that the other party shall not have an adequate remedy at law, including monetary damages, and that the other party shall consequently be entitled to obtain a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any and all remedies to which such other party shall be entitled.

Disclaimer

PRE DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SERVICES AND OTHER DOCUMENTATION AND MATERIALS PROVIDED UNDER THIS AGREEMENT. PRE MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR FREE, OR THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY REQUIREMENTS OR CLIENT’S EXPECTATIONS.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY STATUTE OR RULE OF LAW, EXCEPT FOR A CLAIM PURSUANT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 8.2 , IN NO EVENT WILL PRE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, USE OR DATA, BUSINESS INTERRUPTION, COST OF REPLACEMENT GOODS OR SERVICES, BODILY OR EMOTIONAL INJURY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DELIVERY, PERFORMANCE OR USE OF THE SERVICES, WHETHER SUCH DAMAGES ARE BASED IN BREACH OF WARRANTY, BREACH OF CONTRACT (INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH), TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, IN ANY DEGREE, OR MISREPRESENTATION), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF PRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT PRE’S ENTIRE LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO PRE UNDER THIS AGREEMENT FOR THE PARTICULAR SERVICES GIVING RISE TO SUCH CLAIM DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM. CLIENT AGREES THAT THE LIMITATIONS OF LIABILITY PROVISIONS SET OUT IN THIS ARTICLE 8 ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT PRE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE CLIENT’S AGREEMENT TO LIMIT PRE’S LIABILITY IN THE MANNER AND TO THE EXTENT PROVIDED UNDER THIS AGREEMENT.

Term and Termination

Term

This Agreement will commence on the Effective Date and remain in full force and effect until one (1) year from the Effective Date, unless earlier terminated in accordance with the terms of this Agreement (the “Term”). The agreement will automatically renew for subsequent one (1) year terms, unless either party provides written notice to the other party about non-renewal no later than thirty (30) days prior to expiry of the then-current term.

Termination

Either party may terminate this Agreement by ten (10) day’s notice in writing to the other party if the other party becomes insolvent or bankrupt or it or any other person files a petition for winding up, dissolution or similar arrangement for such party under applicable law. PRE may terminate this Agreement by notice in writing to Client if (a) Client is in breach of Section 2.1 or Article 4 or (b) Client or any affiliated entity commences or carries on a business which includes the development or licensing of software or services, whether or not developed by it, which is capable of a similar use to the Application Services. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and such event is not cured by the breaching party within thirty (30) days after written notice from the non-breaching party or if the other party is in breach of Article 6.

Effect of Termination

Upon any termination or expiration of this Agreement, access to and use of the Application Services and the PRE Content by Client and Authorized Users shall be immediately terminated. Client shall promptly, but in no event later than 5 (five) days from the date of termination: (a) return any and all copies, whether electronic or otherwise, of the PRE Content and other Confidential Information made by Client during the course of the Agreement; (b) purge all copies or partial copies of the PRE Content and Confidential Information from all of Client’s equipment, including, but not limited to, all copies or partial copies of the PRE Content and Confidential Information stored on Client Website and Client’s personal computers; and (c) provide PRE with a written statement, signed by an authorized representative of Client, attesting to the return and/or destruction of all PRE Content and Confidential Information. Termination of this Agreement shall not limit any other right or remedy either party may have with respect to liabilities accruing before the effective date of the termination.  Upon the effective date of expiration or termination of this Agreement, any and all payment obligations of Client under this Agreement will become due immediately.  

Survival

The provisions of Articles 4 (to the extent required in relation to any outstanding payment obligations for Fees), 5, 6, 7, 8, 9, and 10 and Section 2.3 shall survive any termination or expiration of this Agreement.

miscellaneous

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without reference to conflicts of law principles. The parties consent to the exclusive jurisdiction of the provincial and federal courts in the City of Toronto, Province of Ontario in relation to any dispute arising under this Agreement.

Entire Agreement

This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. This Agreement may be amended or modified only by a subsequent written amendment signed on behalf of PRE and Client by their duly authorized representatives, which specifically references this Agreement. There are no representations, warranties, terms, conditions, undertakings or agreements, whether written or oral, and whether express, implied or statutory, between PRE and Client other than as expressly set forth in this Agreement.

Assignment

This Agreement, and any and all rights, duties and obligations hereunder, shall not be assigned, transferred or delegated by Client without the prior written consent of PRE. Any attempt by Client without such consent to assign, transfer or delegate any rights, duties or obligations that arise under this Agreement shall be void. Subject to the foregoing, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns and heirs of the parties hereto.

Waiver

No waiver of this Agreement shall be binding unless executed in writing by the party making the waiver.  No waiver of any provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.

Severability

If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace the original provision with a valid and enforceable provision that will achieve, to the extent possible, the same purposes of the original provision.  The balance of this Agreement shall be enforceable in accordance with its terms.

Customer Reference

Client agrees that PRE may refer to Client as a client of PRE in its websites and Client agrees to act as a customer reference for PRE to prospective customers of PRE.  

Notices

Any notice or other communication required or permitted to be given pursuant to or in connection with this Agreement shall be given as hereinafter provided to: Attention: Contract Administrator, PRE Inc., 7 St. Thomas Street, Unit 502, Toronto, Ontario, M5S 2B7, Canada, and to Client at the address listed above.  Any such notice or other communication, shall be deemed to have been received at the earlier of (i) when delivered personally, (ii) one (1) business day after being delivered by facsimile (with receipt of confirmation), (iii) one (1) business day after being deposited with a courier service that guarantees "next business day" delivery or (iv) five (5) days after being deposited in the regular mail with postage prepaid. Notice of change of address or facsimile number shall also be governed by this section.

Relationship

The relationship of PRE and Client established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall have the authority to make any statement, representation or commitment of any kind, or to take any action, that shall be binding on the other party.

Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

Headings

The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement.